"We are a nation of laws and liberties…" John F. Kerry, campaign
speech, 2004.

September 14, 2005

The appended article is a translation of one that appeared in the
left-wing German newspaper junge Welt on September 10th.
It reports on a recent decision by a German court that the US/UK war in
Iraq is a violation of international law. The court was ruling on a case
brought before it by a German army Major and dealt specifically with the
duty of a soldier to obey an order and the legal issue of neutrality in
international law, a status publicly avowed by the German government.

While there is some interest in reading what a court has to say on this
subject, there is absolutely nothing new here. It's like reading a paper
invoking the laws of physics to calculate the trajectory of a batted
baseball. Everyone with knowledge of the field knows the rules and the
outcome is a foregone conclusion. In physics.

In the real world in which international law governs the relations
between states, for which the laws of physics governing the batted ball
are a metaphor, the outcome is anything but a foregone conclusion. The
really interesting question is why, when every state has experts to advise
it on the law, the prevailing climate of international relationships, in
the face of universal claims to the contrary, is lawlessness.

My answer to this question is that in the absence of a punitive force
which makes lawlessness costly, there will be lawlessness because
lawlessness pays.

This answer leads to several interesting corollaries:

The policy-determining and -implementing personnel in states are
criminals in the ordinary sense of the word.

The elites of states, i.e., persons who are grossly over-represented
in the percentage of the national wealth they own or control, are
likewise criminals in the ordinary sense of the word.

In a revolution in which a new state arises to replace the old one,
the revolutionary state is no more bound to be lawful than was the old
one.

In the absence of an international punitive force, the duty to
enforce international law falls, of necessity, to the non-elite
citizenry of every state.

Interestingly, in accordance with the last point, the Iraqi Resistance
are fulfilling their duty by severely penalizing the US/UK for their
violation of international law.

OTTO

September 10, 2005

National

International Law Violated

Federal Administrative Court condemns support of Iraq war by federal
government as illegal

By FRANK BRENDLETranslated by Otto Hinckelmann

By supporting the Iraq war, the federal government [of Germany] has
violated international law. The accusations made by the peace movement
have now been explicitly confirmed by the Federal Administrative Court.
This past week, the judges in Leipzig made public the basis for their
judgment, originally reached in June, in a written opinion. In it, in view
of the war and German support for it, the court expressed "grave legal
objections."

Operating on two tracks

German army Fox-type tank

Barely three years ago, in the middle of the
last federal election campaign, federal Chancellor Gerhard Schröder (SPD)
[Federal Chancellor since October 27, 1998, having formed a coalition
government with the Green Party] publicly opposed the US Iraq war policy
and German participation in it. Schröder said, "We are not available for
adventures." In fact, the federal government has moved along two tracks:
In public view it opposed the war preparations of the US and Great
Britain, but in practice it gave them unlimited support, excluding direct
sending of its own soldiers. The US received unlimited overflight and
transit rights in federal territory and German airspace; war materiel and
troops were unloaded and reloaded for further transport to the war zone.
US troops trained in the Grafenwöhr practice area for deployment in Iraq.
In order for the war preparations to proceed unhindered, seven thousand
German soldiers were assigned to guard duty around US bases. In Kuwait,
German Fox-type tanks were made available to the "Coalition of the
Willing." Later, German crew-members flew on board NATO AWACS surveillance
aircraft that flew from Turkey and spied from Iraqi airspace.

The peace movement saw these activities as a violation of international
law and the constitution. In an appeal addressed to German soldiers they
were asked "to oppose all orders whose performance would serve as
preparations or support for a war against Iraq." A Major who did exactly
that was demoted for disobedience. To defend himself he placed his case
before the Federal Administrative Court [in Leipzig]. That court has
confirmed the position of the peace movement. One of the participants in
the decision was Judge Dieter Deisenroth, a member of the board of
directors of Jurists Against Atomic, Biological, and Chemical Weapons,
who, at the end of 2002, had rendered an opinion that, "not only the
aggressor, but also those states which help the aggressor," are acting in
violation of international law.

The decision explicitly states that there is no basis in international
law for the Iraq war. In relation to the Federal Republic, the judges
rejected the claim that Germany was a neutral state, saying that such a
state has the obligation in international law "to defend, with force if
necessary, against any violation of its neutrality." Instead, wrote the
judges, the Federal Republic has pursued the aim of "facilitating or even
promoting the actions of the US and the UK" by the support they rendered.

The argument belabored by the Federal Republic that Germany was merely
fulfilling its obligations as a member of NATO was rejected by the court.
There is no obligation "to support actions by NATO partners which
contravene the UN charter and international law." While official sources
were reluctant to comment on the judgment, it was greeted enthusiastically
by peace groups. Ralf Siemens of the Campaign Against the Draft, Alternate
Service, and the Military sees the decision of the court as undermining
the attempt by the SPD [Socialist Party of Germany, in power since Oct.
27, 1998] to portray itself as a "Peace Party" in the current electoral
campaign. The peace movement has been given an impetus "to pay greater
attention to the activities of the German army" rather than just to the
US.

A slap in the face

Nevertheless, it is unlikely that there will be mass rebellion among
soldiers relying on the current precedent in the next war that violates
international law. The judgment limits itself to freedom from punishment
for military disobedience in the case of a moral decision in relation to a
violation of international law. Just as conscientious objectors even today
are not recognized until they have presented a detailed "moral
justification," so must professional soldiers present their moral dilemmas
to their superiors and, in case of disagreement, to the courts. The number
of soldiers who will fulfill the Federal Administrative Court's ideal of
"critical obedience" is, in any case, vanishingly small. The German
soldiers who learned national defense on the Elbe instead of in
Afghanistan have been replaced by a new generation in the past 15 years
which has been trained for action.

The court's decision is not only a sound defeat for the Federal
Government, but also for the Attorney General. In March of 2003 he had
rejected the accusation by the PDS [Party of Democratic Socialism,
politically to the left of the SPD, with roots in the former Communist
East Germany] against the Chancellor [Gerhard Schroeder, SPD] "for
appearing to prepare for a war of aggression." At the time, he wrote that
it was far-fetched "to subsume under the concept of waging war mere
toleration or acts of omission." Now that a Federal Court has straight out
declared the behavior of the Federal Government as aiding and abetting a
violation of international law, it will be interesting to see on what
basis the Attorney General rejects the next accusation against leading
politicians.

A case study: Army Major Florian Pfaff

The decision of the Federal Administrative Court rests on the case of
an army Major who, immediately after the beginning of the war against
Iraq, had notified his superior that he considered the war to be a
violation of international law and that he would not obey any order which
would represent support for that war. Florian Pfaff, who was 46 years old
at the time, was involved in developing software with which the Army
intended to manage all its materiel. The Major, who is a member of the
military association Darmstaedter
Signal, told the pacifist publication, ZivilCourage, "If I had
continued to work on this project, I would have participated in absolutely
everything, also on the guarding of US bases or on AWACS missions. Thus, I
would have participated indirectly in the war."

Since his commander would not give him an alternate assignment, Pfaff
refused to perform further service. He based his action on the military
law, according to which orders which violate international law may not be
obeyed.

Subsequently he was subjected to a disciplinary hearing for
disobedience and a court martial reduced his rank to Captain. The military
judge stated that Pfaff's duties were in no way supportive of the US war.
Additionally, the functionality of the military would suffer in the
absence of a "readiness to obey."

Pfaff filed an appeal against this judgment, in which, just as the
military disciplinary attorney had accused him, he accused the embarrassed
officer of having "violated the core military duties" and demanding his
"removal from service."

The second Military Panel of the Federal Administrative Court agreed
completely with Pfaff. The judges stated that the duty of a soldier to
obey ends at the point where his conscience forbids him to carry out an
order. And orders which are directed against human rights or international
law need not be obeyed.

Documentation: "Aiding and abetting a crime against international
law is itself a crime against international law."

* The most important comments by the Federal Administrative Court on
the contravention of international law of the Iraq war and its support by
the Federal Government [of Germany]:

In respect to the war begun by the US and the UK on March 20, 2003
against Iraq there are grave legal objections in view of the prohibition
against the use of force by the UN charter and other relevant
international law. The governments of the US and the UK can rely neither
on resolutions of the UN Security Council nor on the Right of Self Defense
enunciated in Article 51 of the UN Charter…

An order whose transmission or execution can be considered as
appropriate to, and is intended to, disturb the peaceful coexistence of
people is legally non-binding.

A violation of the international prohibition against violence cannot be
negated simply because the Federal Republic of Germany has repeatedly said
publicly, "that German soldiers will not be involved in combat." Support
for a military action contravening international law can be committed not
only by an act or an omission. Aiding and abetting an offense against
international law is itself an offense against international law.

In international law, a neutral state is bound to resist, with force if
necessary, every violation of its neutrality (…) Military forces of a
party to a conflict which are on the territory of the "neutral state" are
to be prevented from participating in combat (…)

Neither the NATO treaty, nor the NATO military statutes, nor other NATO
agreements anticipate an obligation by the Federal Republic of Germany to
support actions by its NATO partners that contravene the UN Charter or
international law. NATO may take no decision, nor carry out anything which
violates the UN Charter (…)

Grave concerns in international law have arisen in consequence of many
(…) verified instances of support by the Federal Republic of Germany on
behalf of the US and the UK in connection with (…) the war against Iraq.
This applies, among others, to the granting of overflight rights to
military aircraft of the US and UK which departed German territory for the
war zone in the Gulf region or returned from there. It also applies to the
permission to send troops, to the transport of weapons and military
supplies from German territory to the war zone, as well for all
undertakings which could lead to the territory of the German state
becoming a point of origin or a hub to serve to support military
operations directed against Iraq. The objective sense and purpose of these
measures was to facilitate, or even to promote, the military operations of
the US and UK. As a result of this policy, there are grave objections to
the behavior of the Federal Government in this matter in view of the
prohibition against the use of force international law and the cited
provisions of the Fifth Hague Convention (…)